His Honour Judge Alan P. Mahon, Her Honour Judge Mary Faherty and His Honour Judge Gerald B. Keys (members of the Tribunal of Inquiry into Certain Planning Matters and Payments) v Post Publications Ltd trading as The Sunday Business Post

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan,MR. JUSTICE FENNELLY
• Judgment Date: 29 March 2007
• Neutral Citation: [2007] IESC 15
• Court: Supreme Court
• Docket Number: [S.C. No. 367 of 2005]
• Date: 29 March 2007

[2007] IESC 15

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Record No. 367/05

MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST

BETWEEN/

HIS HONOUR JUDGE ALAN P. MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD B. KEYS (MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS)

Plaintiffs/Appellants

and

POST PUBLICATIONS LIMITED TRADING AS THE SUNDAY BUSINESS POST

Defendant/Respondent

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

CONSTITUTION ART 40.6.1(i)

IRISH TIMES v MURPHY 1998 1 IR 359 1997 2 ILRM 541 1998 7 2265 1997 9 3089

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 10

R v CENTRAL INDEPENDENT TELEVISION PLC 1994 FAM 192

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP SUPREME 9.3.2005 2005/46/9637 2005 IESC 9

COCO v AN CLARKE (ENGINEERS) LTD 1969 FSR 415 1969 RPC 41

AG v GUARDIAN NEWSPAPERS LTD (NO 2) 1991 AC 109

HOUSE OF SPRING GARDENS v POINT BLANK 1984 IR 611

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S4

MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST UNREP KELLY 4.10.2005 2005/37/7699 2005 IEHC 307

R v SHAYLER 2003 1 AC 247

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 10(2)EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 8

OFFICIAL SECRETS ACT 1963 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

AG v PAPERLINK 1984 ILRM 373

CONSTITUTION ART 40.3.1

MURPHY v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1999 1 IR 12 1998 2 ILRM 360 1999 20 6111

DE ROSSA v INDEPENDENT NEWSPAPERS PLC 1999 4 IR 432 2000 5 1654

HYNES-O'SULLIVAN v O'DRISCOLL 1988 IR 436 1989 ILRM 349 1988 5 1301

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

OBSERVER & GUARDIAN v UNITED KINGDOM 1992 14 EHRR 153

HEANEY v IRELAND 1994 3 IR 593

PRINCE ALBERT v STRANGE 1849 1 MAC & G 25

DUCHESS OF ARGYLE v DUKE OF ARGYLE 1967 CH 302

TERRAPIN LTD v BUILDERS SUPPLY CO (HAYES) LTD 1960 RPC 128

CRANLEIGH PRECISION ENGINEERING LTD v BRYANT 1965 1 WLR 1293

SEAGER v COPYDEX 1967 2 AER 415

TOULSON & PHIPPS CONFIDENTIALITY 2ED 2006

FRASER v EVANS 1969 1 QB 349

BROADMOOR SPECIAL HOSPITAL AUTHORITY v ROBINSON 2000 2 AER 727 2000 QB 775

AG v JONATHAN CAPE LTD 1976 QB 752

CROSSMAN DIARIES OF A CABINET MINISTER

COMMONWEALTH OF AUSTRALIA v JOHN FAIRFAX & SONS LTD 1980 147 CLR 39

AG FOR ENGLAND & WALES v BRANDON BOOKS LTD 1986 IR 597

COMMISSIONS OF INVESTIGATION ACT 2004 S37

AG v PUNCH LTD 2001 1 AC 1046

Abstract:

Tribunal of Inquiry - Freedom of expression - Confidentiality - Constitutional law -Proportionality - Publication - Restraint -Whether could prevent media publishing confidential documents circulated prior to Tribunal hearings until hearing - Tribunal of Inquiry (Evidence) (Amendment) Act 1979 - Article 40.6.1.i Constitution - Article 10 European Convention on Human Rights

Facts: The Planning Tribunal sought to obtain orders restraining the defendant media organisations from publishing confidential documents circulated prior to public hearings of its modules until the actual hearing of the module. The High Court had rejected the Tribunal's claim, holding that the orders sought were disproportionate and lacked the necessary quality of confidence and related to future claims temporally for confidence.

Held by the Supreme Court per Fennelly J, (Murray CJ, Denham J concurring) (Geoghegan, Hardiman JJ dissenting) that the Tribunal had not established any legal justification for its claim of confidentiality. The orders sought would be speculative and presumptive that the publication of materials would damage the name of unnamed individuals. The orders sought were disproportionate. It would be difficult to decide what was in the public domain. The orders sought would restrict freedom of expression and were not required by law pursuant to Article 10(2) of the European Convention on Human Rights. Per Geoghegan J. that there had been serious leaking of confidential Tribunal documentation over the years and that such leakages had undermined the work of the Tribunal which it had a right to seek to stop.

Reporter: E.F.

1 JUDGMENT of MR. JUSTICE FENNELLY delivered the 29th day of March, 2007

2 1. In this appeal, the Planning Tribunal asks the Court to hold that it has power to require that documents which it circulates prior to public hearing of its modules be treated as confidential and to make general orders restraining the defendant and, in effect, all media of communication, from publishing them until they are disclosed at a public hearing.

The Proceedings

3 2. The plaintiffs are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The Tribunal was established pursuant to an instrument of the Minister for the Environment and Local Government dated 4th November 1997 by virtue of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and a resolution passed by Dáil Eireann on 7th October 1997 and by Seanad Eireann on 8th October 1997. The terms of reference of the Tribunal have been amended by a number of subsequent ministerial instruments. I will refer to the plaintiffs as the Tribunal.

4 3. The defendant is a limited company. It is a subsidiary of Thomas Crosbie (Holdings) Ltd, which publishes "The Examiner." It also publishes the "Sunday Business Post."

5 4. The present proceedings commenced on 17th December 2004 when Finnegan P., on an ex parte application, granted to the Tribunal injunctions in terms set out in a plenary summons issued on 20th December 2004. By notice of motion served for 17th January 2005 the Tribunal applied for interlocutory injunctions in the same terms. Following adjournments to facilitate an exchange of affidavits, the matter came on before Kelly J. in the High Court. By agreement the hearing of the motion was treated as the trial of the action. There were no pleadings other than the plenary summons. In the absence of a statement of claim or of an order granting leave in judicial review proceedings, the issues must be gleaned from the affidavits filed in respect of the application for an interlocutory injunction. The injunctions sought in the proceedings, and granted by Finnegan P., were:

"An order restraining the Defendant, its servants or agents (and all other persons having knowledge of the granting of the Order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal;

Further or in the alternative an injunction restraining the Defendant its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal

(a) before such information and/or the contents of such document has been disclosed or read at a public hearing of the Tribunal;

(b) until the Tribunal has given express permission for the publication, use or exploitation of such information and/or document."

6 5. The Tribunal's motion was grounded on an affidavit of Ms Marcelle Griffin (hereinafter "Ms Griffin"). Mr Anthony Dinan swore an affidavit on behalf of the defendant and Ms Griffin swore a replying affidavit. A comprehensive summary of the evidence and, to a considerable extent, argument is to be found in the judgment of Kelly J. The entire case depends on the confidentiality of certain documents circulated by the Tribunal.

7 6. The Tribunal expounded its policy in respect of confidentiality in a protocol of 14th January 1998. The Tribunal appreciated the concern with regard to personal and commercial confidentiality of persons wishing to assist it in its work. To protect these "legitimate concerns," it outlined a number of measures it proposed to adopt. Principally, these were:

8 7. The Tribunal would return all original documents to their owners on conclusion of its work. In addition:

9 · All copies of documents containing confidential, commercially sensitive or personal information would be destroyed on conclusion of its work;

10 · Confidential information not relevant to the inquiry would not be disclosed to any outside party;

11 · Documents containing both confidential, commercially sensitive or personal information and other information, which was relevant, would have irrelevant information blanked out ("redacted").

12 8. The Tribunal protocols on confidentiality are set out in full in the judgment of Geoghegan J. Nonetheless, the Tribunal has, since its establishment, experienced considerable difficulties in respect of unauthorized disclosure of confidential information. The Tribunal considers that such disclosure causes delay and damage to it in its work. Ms Griffin relates, in her affidavit, a number of instances of serious complaints from individuals, who were in communication with it for the purpose of its work and who claimed that their rights had been infringed by such unauthorized disclosure.

13 9. Ms Griffin describes the Tribunal's modus operandi, which is by now very well known from various judgments of this Court. It divides its work into a first, investigative stage and a second hearing stage. The Tribunal conducts the first stage entirely...